British Columbia (Public Service Employee Relations Comm.) v. BCGEU ("Meiorin") (1999), 35 C.H.R.R. D/257 (S.C.C.)
The Supreme Court of Canada holds that the Government of British
Columbia's aerobic standard used to test the fitness of forest
firefighters discriminates on the basis of sex, and further that the
Government failed to show that the discriminatory standard is justified
as a bona fide occupational requirement ("BFOR").
This case arose as a grievance before a labour arbitrator. Tawney
Meiorin was employed for three years as a member of the Initial Attack
Forest Firefighting crew. Although she did her work well, she lost her
job when the Government adopted a new series of fitness tests for
forest firefighters. She passed three of the tests but failed a fourth
one, a 2.5 km run designed to assess whether she met the Government's
aerobic standards, by taking 49.4 seconds longer than required.
The arbitrator found that the aerobic standard constituted adverse
effect discrimination based on sex because men as a group have a higher
aerobic capacity than women, and consequently are more able to meet the
standard. The average man, with training, could meet the standard. The
average woman, with training, could not meet the standard.
Consequently, the same standard applied to both sexes excluded more
women than men.
The arbitrator also concluded that the Government did not show that
it had accommodated Ms. Meiorin to the point of undue hardship. The
arbitrator ordered that Ms. Meiorin be reinstated and compensated for
lost wages and benefits. This arbitral ruling was overturned by the
British Columbia Court of Appeal.
In the view of the Supreme Court of Canada the narrow issue is
whether the Government improperly dismissed Ms. Meiorin from her job as
a forest firefighter. The broader issue is whether the aerobic standard
unfairly excludes women from forest firefighting jobs. The aerobic
standard was developed for the Government by University of Victoria
researchers. The Court finds that two aspects of the researchers'
methodology are problematic in this case. First, it was primarily
descriptive, based on measuring average performance levels, and
converting this data into minimum performance standards. Therefore, it
did not demonstrate that these performance standards were in fact
necessary to the safe and efficient performance of the job. Second, it
did not seem to distinguish between male and female test subjects. The
record did not show whether women and men require the same minimum
level of aerobic capacity to perform this job safely and efficiently.
The Court holds that the Court of Appeal mistakenly read the
arbitrator's reasons as finding that the aerobic standard was necessary
to the safe and efficient performance of work. The arbitrator found, on
the contrary, that despite her failure to meet the standard Ms. Meiorin
did not pose a serious safety risk to herself, her colleagues, or the
general public. The arbitrator did not find that meeting the aerobic
standard was necessary to safe and efficient job performance.
The Court agrees with the arbitrator that on the conventional legal
approach to applying human rights legislation a case of adverse effect
discrimination was made out and the Government failed to show that it
had accommodated to the point of undue hardship. However, the Court
decides that the conventional analysis should be revisited. The
conventional analysis has distinguished between direct discrimination
and adverse effect discrimination, defining direct discrimination as
that which is open or overt, discriminatory on its face, and adverse
effect discrimination as that which results from the discriminatory
effects of seemingly neutral practices. The defence to direct
discrimination has been to show that the rule is a bona fide
occupational requirement. Absent such a showing, the rule would be
struck down. The defence to adverse effect discrimination has been to
show that a complainant could not be accommodated without undue
hardship. This bifurcated approach has caused some confusion on the
part of tribunals and courts, and the Supreme Court of Canada takes
this occasion to articulate a new "unified" approach which avoids the
distinction between direct and adverse effect discrimination.
Under the unified approach there is a three-step test for
determining whether a discriminatory standard is a BFOR. The employer
must establish: 1. the standard was adopted for a purpose that is
rationally connected to job performance; 2. the particular standard was
adopted in an honest and good faith belief that it was necessary to the
fulfillment of that legitimate work-related purpose; 3. the standard is
reasonably necessary to the accomplishment of that legitimate purpose.
This includes a requirement to demonstrate that it is impossible to
accommodate without undue hardship. Applying the unified approach to
this case, the Court holds that Ms. Meiorin discharged the burden of
establishing that, prima facie, the standard discriminates against
women, and the Government has not shown that the standard is reasonably
necessary. The Government did not show that it would experience undue
hardship if a different standard were used.
The Court disagrees with the Court of Appeal that accommodating
women by permitting them to meet a different aerobic standard
necessarily discriminates against men. The Court also finds that
individual testing, without more, does not negate discrimination. The
appeal is allowed, and the order of the arbitrator is restored, with
costs to the appellant in this Court and the Court below.
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